Gurung (Migration)

This matter concerned an appeal by Mr. Gurung against the cancellation of his Student (Temporary) (Class TU) Subclass 573 visa. The cancellation was based on the applicant's failure to comply with visa condition 8202, which requires a student visa holder to maintain enrolment in a registered course and achieve satisfactory course progress and attendance. The primary legal issue before the Tribunal was whether the cancellation of the visa was justified, considering the applicant's explanations for his non-compliance and the exercise of discretion by the decision-maker.

The Tribunal was required to determine if the applicant had breached visa condition 8202 and, if so, whether to exercise its discretion to cancel the visa. The applicant had provided a written statement detailing personal difficulties, including the death of his grandmother, a natural disaster in his home country, and a medical condition, which he claimed contributed to his academic difficulties and a substantial gap in his studies. The Tribunal considered these explanations alongside government policy guidelines.

The Tribunal found that the applicant had indeed breached visa condition 8202. While acknowledging the plausibility of the applicant's stated mitigating circumstances, the Tribunal placed significant weight on the lack of documentary evidence to support these claims, particularly when such evidence, like a death certificate, would not have been difficult to obtain. Furthermore, the applicant failed to attend the scheduled hearing, which prevented the Tribunal from seeking clarification on his academic progress and motivation. This lack of responsiveness was considered a significant factor in concluding that the applicant was not a genuine student and that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa.